Agenda of Regional Council Meeting

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: The Making and Attesting of the Declarations Required by Members

Reason for Report

1. Schedule 7, Part 1, clause 21 of the Local Government Act 2002 states:

“(4) The chief executive (or, in the absence of the chief executive, a nominee of that officer) must chair the meeting until the chairperson has made and attested the declaration required under clause 14.”

2. Schedule 7, Part 1, clause 14 of the Local Government Act 2002 states:

“(1) A person may not act as a member of a local authority until –

(a) that person has, at a meeting of the local authority following the election of that person, made an oral declaration in the form set out in subclause (3); and

(b) a written version of the declaration has been attested as provided under subclause (2).

(2) The written declaration must be signed by the member and witnessed by –

(a) the chairperson; or

(b) the chief executive of the local authority.”

3. All elected members will be asked to make the oral declaration (in the form shown as Attachment 1) and complete the signing and witnessing provisions.

Decision Making Process

4. Council is required to make every decision in accordance with provisions of Part 6, sub-part 1 of the Local Government Act 2002 (the Act). Staff have assessed requirements contained in the sections of the Act in relation to this item and have concluded that the decision making provisions of the Act do not apply as the making and attesting of declarations by members is specifically provided for under Schedule 7, Part 1, Clause 14 of the Local Government Act 2004.

Recommendations

1. That all elected members make their oral declarations and attest their written declarations.

Leeanne Hooper

Governance & Corporate Administration Manager

Liz Lambert

Chief Executive

Attachment/s

1 View

Written Declaration by a Member

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: Adoption of Standing Orders

Reason for Report

1. The Local Government Act 2002 (Schedule 7, Part 1, Sec 27) requires that “(1) A local authority must adopt a set of standing orders for the conduct of its meeting and those of its committees” and further, states:

“(2) The standing orders of a local authority must not contravene this Act, the Local Government Official Information and Meetings Act 1987, or any other Act.

(3) After the adoption of the first standing orders of the local authority, an amendment of the standing orders or the adoption of a new set of standing orders requires, in every case, a vote of not less than 75% of the members present.

(4) A local authority or committee may temporarily suspend standing orders during a meeting by a vote of not less than 75% of the members present and voting, and the reason for the suspension must be stated in the resolution of suspension.”

2. A copy of NZ 9202:2003 has been supplied to all Councillors.

3. These Standing Orders apply to all Council and Committee meetings of the Hawke's Bay Regional Council, including Joint committees.

4. The adoption of New Zealand Standard NZS 9202:2003 Model Standing Orders for meetings of Local Authorities and Community Boards is recommended, including the following amendments considered and approved by previous Councils.

4.1. Insert Standing Order 2.19 – In Part 2 Constitutional & Legislative Matters:

“2.19. Use of Common Seal

a. The Chief Executive shall hold the Common Seal of the Council and be responsible for the use of the same.

b. The Common Seal is to be used for all land and property transactions; contracts that exceed the Chief Executive’s delegation; all agreements executed by Council that have a term of more than five (5) years; and for validating warrants.

c. The Common Seal is to be affixed with the consent of the Chairman or Deputy Chairman and all such actions reported to the Council.

d. Every document affixed with the Common Seal of the Council shall be carried out by the Chief Executive or a Group Manager, and the affixing of the Common Seal shall be witnessed by the Chief Executive or a Group Manager, and by the Chairman or Deputy Chairman, other than when the document is a warrant issued under Section 174(1) of the Local Government Act 2002, or Section 38(5) of the Resource Management Act 1991, in which case the Common Seal of the Council shall be witnessed by only the Chief Executive.”

4.2. Delete Standing Order - Part 1 - Constitutional & Legislative Matters – 3.4.3 and replace with:

“The quorum at any meeting of a local authority shall consist of half the members (including vacancies) if the number of members is even, and a majority if the number is odd other than for the Tenders Committee of Council where the quorum shall consist of a majority of members of the Committee.”

4.3. Delete Standing Orders 2.5.1(2) and 3.14.2 and replace with:

“The Chairman at any meeting has a deliberative vote and, in the case of equality of votes, also has a casting vote.”

4.4. Amend 2.12.4 with (shown in bold):

“In the case of each meeting to which Standing Order 2.12.1 applies, an agenda detailing the business to be brought before that meeting together with relevant attachments must be received by (~~sent to~~) every member not less than two clear working days before the day appointed for the meeting unless the Council or a Committee resolves to accept receipt of attachments later than two clear working days before the day appointed for the meeting.”

4.5. Amend 2.16 to include 2.16.6; being:

“2.16.6 The Maori Committee Chairman may remain for items discussed during the public excluded part of all Council meetings.”

4.6. Amend Standing Order 3.3.4 - Members to speak in places and address the chair, to read (shown in bold):

“Members granted the right to speak at meetings are to address the Chairman, and may not leave their place without the leave of the Chairman. Members may remain seated when speaking at ordinary and extraordinary meetings of the local authority and at committee meetings.”

4.7. Amend Standing Order 3.19 - Deputations and Public Presentations to include:

Deputations and Public Presentations 3.19.1.a

The Chairman may refuse any request for a public presentation or deputation on any item that appears on the agenda for the day on which the presentation or deputation is requested.

4.8. Amend Standing Order 3.20 – Petitions to include:

Petitions where heard 3.20.1.a

Petitions made to the local authority or any of its committees must be lodged with the Chief Executive at least 2 working days before the date of the meeting concerned, and be approved by the Chairman. The Chairman may refuse petitions which are repetitious or offensive.

Procedures for Petitions 3.20.1.b

Except with the approval of the local authority or committee, not more than 2 members of a deputation may address the meeting. After a presentation is received, members may put to the deputation any question pertinent to the subject heard, but no member may express an opinion upon, or discuss the subject, until the deputation has completed making its submissions and answering questions (see Standing Order 3.15.2 regarding qualified privilege).

Petition where presented by petitioner 3.20.5

Where a petition is presented by a petitioner, unless the local authority determines otherwise, a limit of 10 minutes is placed on that person (see Standing Orders 3.15.1 and 3.15.2 regarding qualified privilege).

If the Chairman has reason to believe that the petitioner is disrespectful or offensive, or has made statements with malice, the Chairman shall terminate the presentation of the petition.

5. Staff are not recommending that an amendment to allow ‘Matters Arising from Previous Minutes’ be adopted, as this is directly contrary to Standing Order 13.17.3 “no discussion may arise on the substance of minutes at any succeeding meeting, except as to their correctness” and the provisions of the Local Government Official Information and Meetings Act 1987 (LGOIMA) relating to public access of information prior to meetings and transparency.

6. Requirement for adoption of standing orders, SO 2.1.1 states:

“A local authority must adopt a set of standing orders for the conduct of its meetings and those of item committees. The standing orders of a local authority must not contravene [any provisions of the Local Government Act 2002], the Local Government Official Information and Meetings Act 1987, or any other Act.”

7. Any actions that arise from Council meetings are followed up through subsequent specific agenda items as resolved at that meeting or via the monthly ‘Action Items from Previous Meetings’ agenda item. Councillors are also able to avail themselves of the provisions of SO 3.10 Notices of Motion if there is a specific issue they wish to ask Council to pursue.

8. These Standing Orders may be altered from time to time if circumstances warrant, by resolution passed by three-quarters of the members present and voting. They may also be temporarily suspended if necessary, e.g. when the Maori Committee meets on a Marae, Standing Orders are suspended.

Decision Making Process

9. Council is required to make every decision in accordance with provisions of Part 6, sub-part 1 of the Local Government Act 2002 (the Act). Staff have assessed requirements contained in the sections of the Act in relation to this item and have concluded that the decision making provisions of the Act do not apply as the adoption of Standing Orders is specifically provided for under Schedule 7, Part 1, Section 27 of the Local Government Act 2004.

Recommendations

That the Hawke's Bay Regional Council adopt the New Zealand Standard Model Standing Orders NZS 9202:2003 for meetings of Local Authorities and Community Boards, with the following amendments.

1. Insert Standing Order – In Part 2 Constitutional & Legislative Matters – 2.19:

“2.19. Use of Common Seal

a. The Chief Executive shall hold the Common Seal of the Council and be responsible for the use of the same.

c. The Common Seal is to be affixed with the consent of the Chairman or Deputy Chairman and all such actions reported to the Council.

2. Delete Standing Order - Part 1 - Constitutional & Legislative Matters – 3.4.3 and replace it as follows.

3. Delete Standing Orders 2.5.1(2) and 3.14.2 and replace with:

“The Chairman at any meeting has a deliberative vote and, in the case of equality of votes, also has a casting vote.”

4. Amend 2.12.4 with the following (shown in bold):

“In the case of each meeting to which Standing Order 2.12.1 applies, an agenda detailing the business to be brought before that meeting together with relevant attachments must be received by every member not less than two clear working days before the day appointed for the meeting unless the Council or a Committee resolves to accept receipt of attachments later than two clear working days before the day appointed for the meeting.”

5. Amend 2.16 to add 2.16.6 to read:

“2.16.6 The Maori Committee Chairman may remain for items discussed during the public excluded part of all Council meetings.”

6. Amend Standing Order 3.3.4 - Members to speak in places and address the chair, to read:

7. Amend Standing Order 3.19 - Deputations and Public Presentations to include:

Deputations and Public Presentations 3.19.1.a

The chairman may refuse any request for a public presentation or deputation on any item that appears on the agenda for the day on which the presentation or deputation is requested.

8. Amend Standing Order 3.20 – Petitions to include:

Petitions where heard 3.20.1.a

Procedures for Petitions 3.20.1.b

Petition where presented by petitioner 3.20.5

If the Chairman has reason to believe that the petitioner is disrespectful or offensive, or has made statements with malice, the Chairman shall terminate the presentation of the petition.

Leeanne Hooper

Governance & Corporate Administration Manager

Liz Lambert

Chief Executive

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: Election of Chairman

Reason for Report

1. The election of the Chairman is included in the list of matters to be considered at the first meeting of a local authority following the triennial election of members. This item is to deal with this matter.

2. The Local Government Act 2002 provides direction for the election of a Chairman. This must be done in accordance with the voting requirements contained in Schedule 7, Part 1, sections 24 and 25. The relevant matters from these sections state:

Section 24(3)

“An act or question coming before the local authority must be done or decided by open voting.”

Section 25

“Voting systems for certain appointments—

(1) This clause applies to—

(a) the election or appointment of the chairperson and deputy chairperson of a regional council; and

(b) ….

(c) the election or appointment of the chairperson and deputy chairperson of a committee; and

(2) If this clause applies, a local authority or a committee (if the local authority has so directed) must determine by resolution that a person be elected or appointed by using one of the following systems of voting:—

(a) the voting system in subclause (3) (`system A'):

(b) the voting system in subclause (4) (`system B').

(3) System A —

(a) requires that a person is elected or appointed if he or she receives the votes of a majority of the members of the local authority or committee present and voting; and

(b) has the following characteristics:—

(i) there is a first round of voting for all candidates; and

(ii) if no candidate is successful in that round there is a second round of voting from which the candidate with the fewest votes in the first round is excluded; and

(iii) if no candidate is successful in the second round there is a third, and if necessary subsequent, round of voting from which, each time, the candidate with the fewest votes in the previous round is excluded; and

(iv) in any round of voting, if 2 or more candidates tie for the lowest number of votes, the person excluded from the next round is resolved by lot.

(4) System B —

(a) requires that a person is elected or appointed if he or she receives more votes than any other candidate; and

(b) has the following characteristics:

(i) there is only 1 round of voting; and

(ii) if 2 or more candidates tie for the most votes, the tie is resolved by lot.”

3. The Council has previously adopted System A and this is again being recommended to Council for adoption.

4. If System A is adopted the actual vote will be conducted as follows.

4.1. Nominations for the position of Chairman will be called for which must be supported by a seconder (being a different person) both of whom cannot be the person being nominated. A Councillor can nominate more than one person.

4.2. Nominations will then be closed.

4.3. The first round of voting will then be undertaken by show of hands and with only one vote per Councillor (i.e. 9 in total);

4.4. If there are three or more nominees and a majority of Councillors (i.e. 5) does not support one nominee then the candidate with the fewest votes will be excluded from the next round. If 2 or more candidates tie for the lowest number of votes, the person excluded from the next round will be resolved by lot. In this instance the names of the 2 candidates will be placed in a suitable container and the Council’s Electoral Officer will draw a name from the container and this person will be excluded from the next round.

4.5. A second and further round(s) of voting will be conducted if necessary in the same way as described above.

4.6. In the event of an equality of votes for the 2 remaining candidates the person excluded from the next round will be resolved by lot, and the remaining candidate will be declared to be the Chairperson.

5. If System B is adopted the actual vote will be conducted as follows.

5.1. Nominations for the position of Chairperson will be called for which must be supported by a seconder (being a different person) both of whom cannot be the person being nominated. A Councillor can nominate more than one person.

5.2. Nominations will then be closed.

5.3. The only round of voting will then be undertaken by show of hands and with only one vote per Councillor (i.e. 9 in total).

5.4. If 2 or more candidates tie for the most votes, the tie is resolved by lot and the remaining candidate will be declared to be the Chairman.

Decision Making Process

6. Council is required to make every decision in accordance with provisions of Part 6, sub-part 1 of the Local Government Act 2002 (the Act). Staff have assessed requirements contained in the sections of the Act in relation to this item and have concluded that the decision making provisions of the Act do not apply as the election of the chairman is specifically provided for under Schedule 7, Part 1, Sections 21 and 25 of the Local Government Act 2002.

Recommendations

That Council:

1. Resolves to adopt voting system A for the election of the Chairman of Council as detailed in Schedule 7 Part 1 Section 25(3) of the Local Government Act 2002.

2. Confirms that in the case of determination by lot the method used shall be for the Electoral Officer of Council (Carol Gilbertson) to draw the name of the person to be excluded from the next round of voting from a suitable container with the Group Manager Corporate Services acting as scrutineer during this process.

Liz Lambert

Chief Executive

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: The Making and Attesting of the Declaration Required by the Chairman

Reason for Report

1. Schedule 7, Part 1, clause 21 of the Local Government Act 2002 states:

2. Schedule 7, Part 1, clause 14 of the Local Government Act 2002 states:

“(1) A person may not act as a member of a local authority until –

(a) that person has, at a meeting of the local authority following the election of that person, made an oral declaration in the form set out in subclause (3); and

(b) a written version of the declaration has been attested as provided under subclause (2).

(2) The written declaration must be signed by the member and witnessed by –

(a) the chairperson; or

(b) the chief executive of the local authority.”

3. The Chairperson will be asked to make the oral declaration (in the form annexed as Attachment 1) and complete the signing and witnessing provisions.

Decision Making Process

4. Council is required to make every decision in accordance with provisions of Part 6, sub-part 1 of the Local Government Act 2002 (the Act). Staff have assessed requirements contained in the sections of the Act in relation to this item and have concluded that the decision making provisions of the Act do not apply as the making and attesting of declarations by the Chairperson is specifically provided for under Schedule 7, Part 1, Clause 14 of the Local Government Act 2002.

Recommendation

1. That the Chairman makes his/her oral declaration and attests their written declaration.

Leeanne Hooper

Governance & Corporate Administration Manager

Liz Lambert

Chief Executive

Attachment/s

1 View

Declaration by Chairman

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: Election of Deputy Chairman

Reason for Report

1. The election of the Deputy Chairman is included in the list of matters to be considered at the first meeting of a local authority following the triennial election of members. This item is to deal with this matter.

2. The responsibilities of Deputy Chairman are outlined in Schedule 7, Part 1, section 17(3) of the Local Government Act, which states:

“(3) The deputy mayor or deputy chairperson must perform all the responsibilities and duties, and may exercise all the powers, of the mayor or chairperson,—

(a) with the consent of the mayor or chairperson, at any time during the temporary absence of the mayor or chairperson:

(b) without that consent, at any time while the mayor or chairperson is prevented by illness or other cause from performing the responsibilities and duties, or exercising the powers, of his or her office:

(c) while there is a vacancy in the office of the mayor or chairperson.”

3. The Local Government Act 2002 provides direction for the election of a Deputy Chairman. This must be done in accordance with the voting requirements contained in Schedule 7, Part 1, sections 24 and 25. The relevant matters from these sections state:

Section 24(3)

“An act or question coming before the local authority must be done or decided by open voting.”

Section 25

“Voting systems for certain appointments—

(1) This clause applies to—

(a) the election or appointment of the chairperson and deputy chairperson of a regional council; and

(b) ….

(c) the election or appointment of the chairperson and deputy chairperson of a committee; and

(a) the voting system in subclause (3) (`system A'):

(b) the voting system in subclause (4) (`system B').

(3) System A—

(a) requires that a person is elected or appointed if he or she receives the votes of a majority of the members of the local authority or committee present and voting; and

(b) has the following characteristics:—

(i) there is a first round of voting for all candidates; and

(ii) if no candidate is successful in that round there is a second round of voting from which the candidate with the fewest votes in the first round is excluded; and

(iv) in any round of voting, if 2 or more candidates tie for the lowest number of votes, the person excluded from the next round is resolved by lot.

(4) System B—

(a) requires that a person is elected or appointed if he or she receives more votes than any other candidate; and

(b) has the following characteristics:

(i) there is only 1 round of voting; and

(ii) if 2 or more candidates tie for the most votes, the tie is resolved by lot.”

4. The Council has previously adopted System A and this is again being recommended to Council for adoption.

5. If System A is adopted the actual vote will be conducted as follows.

5.1. Nominations for the position of Deputy Chairman will be called for, which must be supported by a seconder (being a different person) both of whom cannot be the person being nominated. A Councillor can nominate more than one person.

5.2. Nominations will then be closed.

5.3. The first round of voting will then be undertaken by show of hands and with only one vote per Councillor (i.e. 9 in total).

5.4. If there are three or more nominees and a majority of Councillors (i.e. 5) does not support one nominee then the candidate with the fewest votes will be excluded from the next round. If 2 or more candidates tie for the lowest number of votes, the person excluded from the next round will be resolved by lot. In this instance the names of the 2 candidates will be placed in a suitable container and the Council’s Electoral Officer will draw a name from the container and this person will be excluded from the next round.

5.5. A second and further round(s) of voting will be conducted if necessary in the same way as described above.

5.6. In the event of an equality of votes for the 2 remaining candidates the person excluded from the next round will be resolved by lot, and the remaining candidate will be declared to be the Deputy Chairman.

6. If System B is adopted the actual vote will be conducted as follows.

6.1. Nominations for the position of Deputy Chairman will be called for which must be supported by a seconder (being a different person) both of whom cannot be the person being nominated. A Councillor can nominate more than one person.

6.2. Nominations will then be closed.

6.3. The only round of voting will then be undertaken by show of hands and with only one vote per Councillor (i.e. 9 in total).

6.4. If 2 or more candidates tie for the most votes, the tie is resolved by lot(s) and the remaining candidate will be declared to be the Deputy Chairman.

Recommendations

That Council:

1. Resolves to adopt voting system A for the election of the Deputy Chairman of Council as detailed in Schedule 7 Part 1 Section 25(3) of the Local Government Act 2002.

2. Confirms that, in the case of determination by lot, the method used shall be for the Electoral Officer of Council (Carol Gilbertson) to draw the name of the person to be excluded from the next round of voting from a suitable container with the Group Manager Corporate Services acting as scrutineer during this process.

Liz Lambert

Chief Executive

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: Schedule of Meetings to 31 December 2013

Reason for Report

1. The Council traditionally adopts a Schedule of Meetings in November for the next 12 months. However, it is proposed to initially adopt the Schedule to 31 December 2013, and to adopt a Meeting Schedule for 2014 at the 28 November meeting of Council.

2. The schedule proposed is based on the assumption that the proposed Committee Structure will be adopted at the 6 November Regional Council meeting.

Decision Making Process

3. Council is required to make every decision in accordance with provisions of Part 6, sub-part 1 of the Local Government Act 2002 (the Act). Staff have assessed requirements contained in the sections of the Act in relation to this item and have concluded that the decision making provisions of the Act do not apply as adoption of a schedule of meetings is specifically provided for under Schedule 7, Part 1, Section 21 of the Local Government Act 2002.

Recommendation

1. That Council adopts the Schedule of Meetings following, for November and December 2013.

November

Wednesday, 6 Regional Council (1^st Ordinary) 9.00am Half day

Wednesday, 6 Tenders Committee 1.00pm 2 hours

Wednesday, 20 Environment & Services Committee 9.00am Full day

Thursday, 28 Regional Council 9.00am Full day

Friday, 29 Regional Transport Committee 10.15am Full day

December

Tuesday, 3 Maori Committee 10.15am Half day

Wednesday, 4 Regional Planning Committee 1.00pm Half day

Wednesday, 11 Corporate & Strategic Committee 9.00am Full day

Wednesday, 18 Regional Council 9.00am Full day

Leeanne Hooper

Governance & Corporate Administration Manager

Liz Lambert

Chief Executive

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: Local Government New Zealand

Reason for Report

1. Council is a member of Local Government New Zealand (LGNZ) which is the national body representing the interests of all Local Authorities in New Zealand.

2. The Country is divided into 6 ‘Zones’ which meet periodically. The Chairman has traditionally represented Council at these meetings and other Councillors may attend when relevant items of interest appear on the agenda.

3. The Chairman also attends, as the Council’s representative, the Regional Affairs Committee which is a Committee of LGNZ representing all Regional and Unitary Authorities.

4. It is necessary to formalise Council’s representation on the various bodies of Local Government New Zealand.

Financial and Resource Implications

5. There are usually 4 sector group meetings held each year, and one 3-4 day LGNZ conference.

6. The Council pays $40,280 per year to LGNZ for membership fees, and travel and accommodation costs associated with elected representative meeting attendance are covered by Council as well.

Decision Making Process

7. Council is required to make every decision in accordance with provisions of Part 6, sub-part 1 of the Local Government Act 2002 (the Act). Staff have assessed requirements contained in the sections of the Act in relation to this item and have concluded that the decision making provisions of the Act do not apply as Council is only appointing a representative to represent the interests of the Council.

Recommendations

That Council:

1. Confirms the Chairman of Council, or his/her substitute delegate, as the Hawke's Bay Regional Council’s representative at Zone 3 meetings of Local Government New Zealand.

2. Authorises the Chairman, as HBRC delegate, to vote at those meetings on behalf of the Hawke's Bay Regional Council.

3. Appoints the Chairman as Council’s representative on the Regional Affairs Committee of Local Government New Zealand.

4. Delegates to the Chairman of HBRC, the authority to respond to and provide input into matters relating to Local Government New Zealand, reporting as necessary to Council.

Liz Lambert

Chief Executive

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: Local Government Official Information and Meetings Act 1987

Reason for Report

1. The Local Government Official Information and Meetings Act (LGOIMA) applies to every local authority in New Zealand. The purposes of LGOIMA are:

(a) To provide for the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities, in order─

(i) To enable more effective participation by the public in the actions and decisions of local authorities; and

(ii) To promote the accountability of local authority members and officials─

and thereby to enhance respect for the law and to promote good local government in New Zealand:

(b) To provide for proper access by each person to official information relating to that person

(c) To protection official information and the deliberations of local authorities to the extent consistent with the public interest and the preservation of personal privacy.

2. A copy of the Act is held in the Councillors’ Lounge, for reference.

Official and Personal Information

3. Official Information includes virtually all information held by a local authority, or by any of its members, officers or employees in their official capacities. It includes files, records, letters, documents, manuals, written instructions, plans, photographs, diary notes, computer data and almost everything else that records some aspect of the authority’s activities.

4. The over-riding principle of the Act is that information will be made available unless there is good reason under the Act, to withhold it. LGOIMA section 5 Principle of availability states:

“The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.”

5. The Court of Appeal has said of the Act that if you are in two minds about the application of a withholding reason, the principle of availability means you should err on the side of making the information available.

6. Section 6 of the Act specifies the ‘conclusive reasons for withholding official information’ are:

“Good reason for withholding official information exists, for the purpose of section 5, if the making available of that information would be likely—

(a) to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

(b) to endanger the safety of any person.”

7. The reasons for withholding in section 7 of the Act are called ‘good reasons’ and are:

(1) Where this section applies, good reason for withholding official information exists, for the purpose of section 5, unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

(2) Subject to sections 6, 8, and 17, this section applies if, and only if, the withholding of the information is necessary to—

(a) protect the privacy of natural persons, including that of deceased natural persons; or

(b) protect information where the making available of the information—

(i) would disclose a trade secret; or

(ii) would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information; or

(ba) in the case only of an application for a resource consent, or water conservation order, or a requirement for a designation or heritage order, under the Resource Management Act 1991, to avoid serious offence to tikanga Maori, or to avoid the disclosure of the location of waahi tapu; or

(c) protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information—

(i) would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied; or

(ii) would be likely otherwise to damage the public interest; or

(d) avoid prejudice to measures protecting the health or safety of members of the public; or

(e) avoid prejudice to measures that prevent or mitigate material loss to members of the public; or

(f) maintain the effective conduct of public affairs through—

(i) the free and frank expression of opinions by or between or to members or officers or employees of any local authority, or any persons to whom section 2(5) applies, in the course of their duty; or

(ii) the protection of such members, officers, employees, and persons from improper pressure or harassment; or

(g) maintain legal professional privilege; or

(h) enable any local authority holding the information to carry out, without prejudice or disadvantage, commercial activities; or

(i) enable any local authority holding the information to carry on, without prejudice or disadvantage, negotiations (including commercial and industrial negotiations); or

(j) prevent the disclosure or use of official information for improper gain or improper advantage.

8. Personal Information is “official information held about an identifiable person”. Any personal information held by a local authority must be made available to the individual concerned upon request. There are limited reasons for withholding personal information.

9. In accordance with LGOIMA section 11, every local authority has a duty to assist any person who requests information:

“to make a request in a manner that is in accordance with that section (10) or to direct that person's request to the appropriate local authority or department or Minister of the Crown or organisation.”

10. Requests for information must be responded to in accordance with LGOIMA section 13:

“(1) …as soon as reasonably practicable, and in no case later than 20 working days after the day on which the request is received by that local authority,—

(a) decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge (if any); and

(b) give or post to the person who made the request notice of the decision on the request.”

11. Refusal of a request:

“17 …may be refused only for 1 or more of the following reasons, namely:

(a) that, by virtue of section 6 or section 7, there is good reason for withholding the information:

(b) that, by virtue of section 8, the local authority does not confirm or deny the existence or non-existence of the information requested:

(c) that the making available of the information requested would—

(i) be contrary to the provisions of a specified enactment; or

(ii) constitute contempt of court or of the House of Representatives:

(d) that the information requested is or will soon be publicly available:

(da) that the request is made by a defendant or person acting on behalf of a defendant and is—

(i) for information that could be sought by the defendant under the Criminal Disclosure Act 2008; or

(ii) for information that could be sought by the defendant under that Act and that has been disclosed to, or withheld from, the defendant under that Act:

(e) that the document alleged to contain the information requested does not exist or cannot be found:

(f) that the information requested cannot be made available without substantial collation or research:

(g) that the information requested is not held by the local authority and the person dealing with the request has no grounds for believing that the information is either—

(i) held by another local authority or a department or Minister of the Crown or organisation; or

(ii) connected more closely with the functions of another local authority, or a department or Minister of the Crown or organisation:

(h) that the request is frivolous or vexatious or that the information requested is trivial.”

12. Any refusal to provide official information requested must include the reason for its refusal and advice of the applicant’s right to complain to the Ombudsman.

13. It is impractical for all requests for official or personal information to be considered by the Council, and Section 42 of the Act authorises the delegation to any officer or employee of all or any of the local authority's powers under the Act, except the power to decide upon an Ombudsman’s recommendation. In practical terms, requests for information are considered by the staff recipient in the first instance and dealt with accordingly or delegated to whomever ‘holds’ the information being requested.

Meetings of Local Authorities

14. Decision making meetings of councils and their committees are open to the public and must be publicly notified (s.46), including start times and places they will be held, with agendas and associated reports to be considered available to the public beforehand (s.46A).

15. Councils may only exclude the public from all or part of a meeting for good reason, which may include privacy of an individual or other need for confidentiality as specifically provided for by the Act.

Decision Making Process

16. Council is required to make a decision in accordance with Part 6 Sub-Part 1, of the Local Government Act 2002 (the Act). Staff have assessed the requirements contained within this section of the Act in relation to this item and have concluded that, as this report is for information only and no decision is to be made, the decision making provisions of the Local Government Act 2002 do not apply.

Recommendation

1. That Council takes note of the information contained in the “Local Government Official Information and Meetings Act 1987” report.

Leeanne Hooper

Governance & Corporate Administration Manager

Liz Lambert

Chief Executive

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Wednesday 23 October 2013

SUBJECT: Relative Laws and Legislation Affecting Elected Members

Reason for Report

1. A primary list of the legislative framework under which the Council operates is contained in the Council’s Annual Plan 2013/14, a copy of which has been provided to Councillors.

2. In addition, Local Government NZ has produced the “Elected Members’ Governance Handbook Pack”, which has also been provided to each Councillor.

3. There are more than 60 Acts of Parliament which impose responsibilities on Council and Councillors.

4. A brief outline of the more relevant legislation follows.

Local Government Act 2002

5. This is the principal piece of legislation which establishes the Council and determines the role and functions of Council. The purpose, role and powers of local authorities (City Councils, District Councils, Regional Councils, Unitary Authorities and Community Boards) are set out in Part 2 of the Act.

6. Part 4 of the Act identifies the principles and requirements for the governance and management of local authorities and specifies where members are liable for certain actions and able to be indemnified.

7. Schedule 7 of the Act specifies numerous issues relevant to elected members including remuneration, code of conduct, meeting procedures, etc.

Local Authorities (Members' Interests) Act 1968

8. This Act disqualifies a person from election to, appointment to, or membership of, a Council or committee if they have an interest in contracts to be let by that Council or committee above a certain value.

9. This Act also prohibits Council or committee members from voting on or taking part in discussion on any matter in which they have a direct or indirect financial interest.

10. For Councillors’ reference, a copy of each of the Acts outlined above is stored in the Councillors’ Lounge. Council also has a fully annotated electronic statute library of all relevant Acts available for viewing.

Crimes Act 1961

11. Section 99 is an interpretation clause and contains the definition of ‘official’. The term includes “Any member or employee of any local authority”.

12. Section 105 makes it a crime for any official to corruptly accept or obtain any bribe for themselves or another person for doing, or failing to do, an action within their official category.

13. Under Section 105a, an official is also liable to imprisonment for up to seven years who “…corruptly uses or discloses any information acquired by him in his official capacity to obtain directly or indirectly an advantage or a pecuniary gain for himself or any other person”.

Secret Commissions Act 1910

14. This Act makes it an offence for a Councillor or committee member to accept or attempt to obtain for themselves (or any other person) a gift, inducement or reward for doing or not doing something.

Securities Act 1978

15. This Act requires that a prospectus be issued, and compliance with other provisions, if the Council is to seek to borrow money from members of the public.

16. The penalties for breach of the Act are severe. Perhaps of greater significance is the fact that liability could attach to members individually and not just to the Council.

Decision Making Process

17. Council is required to make a decision in accordance with Part 6 Sub-Part 1, of the Local Government Act 2002 (the Act). Staff have assessed the requirements contained within this section of the Act in relation to this item and have concluded that, as this report is for information only and no decision is to be made, the decision making provisions of the Local Government Act 2002 do not apply.

Recommendation

1. That Council takes note of the information contained in the “Relative Laws and Legislation Affecting Elected Representatives” report.

Leeanne Hooper

Governance & Corporate Administration Manager

Paul Drury

Group Manager Corporate Services

Attachment/s

There are no attachments for this report.